Governor Mitt Romney said yesterday that he would ask
the Supreme Judicial Court to override the Legislature and let voters
decide whether to ban same-sex marriage, telling a boisterous crowd of
several thousand at a State House rally that lawmakers are violating the
state constitution by refusing to act on the proposal....

"The issue before us is not whether same-sex couples should marry. The
issue before us today is whether 109 legislators will follow the
constitution," declared Romney, promising to send the 109 lawmakers a
copy of the constitution and their oath of office to underscore his
frustration. "Let us not see the state, which first established
constitutional democracy, become the first to abandon it."

A spokesman for Romney said he would file a lawsuit with an SJC justice
this week, urging the justice to direct Secretary of State William F.
Galvin to place the issue on the state ballot anyway on the grounds that
the Legislature is obstructing democracy.

Incensed by the "obstructionist" Legislature, the Republican
presidential hopeful will this week petition a single justice of the state
Supreme Judicial Court to order the same-sex marriage amendment onto a ballot -
which lawmakers have refused to do.

"Let us not see this state, which first established constitutional democracy,
become the first to abandon it," said Romney, standing before a backdrop of the
imposing Stars and Stripes.

In an effort to bypass the state Legislature and force a vote
on a proposed constitutional ban on gay marriage in 2008, Gov. Mitt Romney is
expected to petition the state’s highest court today to allow the issue to be
put to voters without lawmakers’ backing....

The petition, which will be made to a single justice of the state Supreme
Judicial Court, will seek an order directing Secretary of State William Galvin
to put the proposed amendment defining marriage as between a man and a woman
before voters on the November 2008 ballot....

Gay marriage supporters lauded the 109 lawmakers who voted for the recess,
including House Speaker Salvatore DiMasi, but Romney blasted them and on Monday
sent each a copy of the state constitution along with a letter accusing them of
violating their oaths of office.

The suit said the Legislature's refusal to act on the measure
marks the fifth time in 24 years that lawmakers had violated the constitutional
provision that allows citizens to vote on amendments they initiated. Proponents
of the same-sex marriage ban collected a record 170,000 signatures in hopes of
getting the amendment on the ballot. But to qualify for a statewide referendum,
the measure also requires the support of at least 50 legislators in two
consecutive sessions....

This is the dismissive term used by Arline Isaacson, the fiery co-chairwoman of
the Massachusetts Gay and Lesbian Political Caucus, to describe those whose
support of a lefty cause is tempered by their commitment to play by the rules.

It is, in this case, aimed at people like me who support gay marriage but oppose
the legislative dodge, all but killing a constitutional ballot initiative
barring gay marriage, exercised earlier this month by the House and Senate,
sitting together as a Constitutional Convention....

Process liberals get tagged in torrid single-issue causes whose advocates like
Isaacson conclude that the end justifies the means. That the goal is so
important, they can ignore due process, in this case the state constitution.

"It's not a matter of following the constitution," says John Reinstein, legal
director of the American Civil Liberties Union of Massachusetts. "It's following
the constitution down the drain."

Great line, but, of course, once you start choosing which parts of the
constitution to obey, you're practicing cafeteria constitutionalism, which
invites cynicism....

It's not just Romney and gay marriage. Another constitutional amendment that got
sidetracked calls for affordable, comprehensive health care for everyone in the
state. (It was banished to a study group that has never met.) Earlier this
month, former US attorney Donald K. Stern filed a complaint to the SJC similar
to the Romney suit on behalf of a group behind this initiative....

I can't predict the outcomes of the two SJC petitions -- intellectual mud
wrestling among smart lawyers will shape them -- but I do know that the current
situation smells bad.

If you were one of the 109 lawmakers who voted to recess the
Constitutional Convention without voting on a citizen petition against gay
marriage on Nov. 9, you had mail last week – gubernatorial mail, bound and
annotated.

Gov. Mitt Romney’s Thanksgiving week package to the reps and senators who voted
not to take up the ballot initiative banning gay marriage also included a copy
of the state oath of office, and a letter chiding legislators, "By not voting,
you are frustrating the democratic process and subverting the plain meaning of
the Constitution. The issue before us isn't whether gay couples can marry - it's
whether the Constitution will be honored and whether the will of the people will
be honored."

Recipients were nonplussed....

House Minority Leader Rep. Bradley Jones (R-North Reading) said the direction of
the Jan. 2 return of the Constitutional Convention hangs on Senate President
Robert Travaglini, the presiding officer.

Unless Travaglini calls for a vote, Jones said, "There’s nothing that’s going to
preclude people from talking until time runs out. I mean, you can see that
happening. We’ll have Jarrett Barrios get up and talk for a half-hour." ...

"I don’t think it hurts," Jones said. "Look, obviously that specific aspect of
the point the governor’s making may be more theater than anything else, but it
does serve as an exclamation point on a very valid point, or a very valid
concern."

But the majority of lawmakers interviewed conveyed a mixture of amusement and
bitterness....

In an emailed response, Romney spokesman Eric Fehrnstrom wrote, "The
Constitution is pretty clear. It says legislators 'shall' vote on proposed
amendments brought forward by the people. Legislators can vote against the
proposed amendment if they like, but they should not avoid their responsibility
to take a vote."

Rep. Rachel Kaprielian (D-Watertown) also shrugged off any added value of a
state document sent to her by a likely presidential contender: "I kept mine. I
put it on my bookshelf for reference material ... It’s another copy of a
document I may want to reference at some point."

"It's a good day for gay-marriage proponents and a bad day
for gay-marriage opponents," state Rep. Michael Costello, D-Newburyport,
chortled last week after the Constitutional Convention went into recess without
voting on the gay-marriage issue.

Actually, it was a bad day for democracy....

Rep. Harriett Stanley, D-West Newbury, is one who feels it's time for the
commonwealth to move on and opposes a statewide vote on the amendment. However,
she noted, "It's our job as the Legislature to make tough decisions ... (this
is) avoiding it."

But Costello and those of his ilk ..., feel the ends justify the means, however
improper. So rather than risk an affirmative vote, they opted to recess until
the last day of the legislative session on Jan. 2, effectively killing the
petition and ensuring that it cannot go before voters until 2010 at the
earliest.

Costello's actions even won him a mention in the Wall Street Journal which cited
his "arrogant dismissal" of voter preference as a reason "so many Americans
despise politicians."

Most of those who voted for this latest recess had done so in July, at which
time they promised a vote - no surprise - right after the election. But three
North of Boston legislators - John Keenan, D-Salem; Mary Grant, D-Beverly; and
Ted Speliotis, D-Danvers - who'd opposed recessing the Constitutional Convention
in July, were persuaded during the intervening four months that it would be
better to stifle a vote this time.

It is unfortunate that Barbara Anderson must of late resort
to invective and falsehoods to make a point ("If
only we could send Massachusetts legislators to some deserted island,"
Viewpoint, Nov. 15). I know her to be a better and more thoughtful essayist than
that The decision by the Legislature on Nov. 9 to recess the Constitutional
Convention was not motivated by arrogance and contempt of our constituents as
Barbara relentlessly asserts....

To Barbara, I am sorry that you are so angry and disappointed with the
Legislature and with your fellow citizens (whom you deem as "clueless by choice"
for re-electing legislators who voted this way). These are difficult decisions
that legislators must make. Some people will agree with my votes and others not.
Clearly Barbara does not, although it should be noted that my office has been
flooded with thank-you notes from concerned citizens who do.

"The state Constitution clearly spells out that it's
the job of the Legislature and not the general public to make tough
decisions, particularly when they concern amendments like the one to ban
gay marriage," Petersen said Tuesday. "My wish is that we make this a
very public legislative vote. We are the gatekeepers, which is why
the Founding Fathers brought us into the picture. We aren't just a
pass-through. Besides, I feel very capable of making that decision."

In
her column, Anderson also slammed Petersen for earlier statements he made
regarding why the legislative vote on gay marriage should be held during a year
when many of his colleagues are not up for re-election.

Call us process conservatives or
process
libertarians. We won't let "process liberals" like Boston Globe
columnist Sam Allis take all the credit for consistent integrity; claim
the moral high-ground of unshakeable philosophical principles. The
credit is shared: We've earned our claim over many years, decades
of always defending the process purely on principle, regardless of the
issue at hand at any given moment. [See: CLT News Release,
Nov. 15, "CLT
Joins 'Health Care for Massachusetts' Lawsuit After Constitution is
Violated by Legislature"]

CLT, through Barbara Anderson,
joined the first class action lawsuit filed with the state Supreme
Judicial Court, on November 10 by the Committee for Healthcare for
Massachusetts. It too, like Governor Romney's lawsuit, challenges
the Legislature's persistent dodging of their constitutional
responsibility to take an up-or-down vote on any initiative amendment
brought before it in Constitutional Convention, a violation too of their
oaths of office.

It's time to bring a Legislature run amok to heel: force it to again respect its constituents, the Constitution, and each
arrogant legislator's oath of office; time to demand that their
lawlessness be terminated. Let's hope the state's highest court
agrees and slaps it down once and for all. If the SJC doesn't, the
court might as well repeal Article 48 of the state constitution and at
least be honest about what it is doing. If the court lets this
injustice prevail, in effect that's what it'll have ruled.

Talk about arrogant legislators, consider state Rep.
Doug Petersen (D-Marblehead) at the top of the pile. During the
summer, after the Legislature put off its constitutionally mandated vote
on proposed constitutional amendments until after the election, Barbara
wrote a column criticizing the cynical, cowardly dodge (Jul. 20, "Legislative
trickery at work on gay marriage debate"). Rep. Petersen
exploded in self-righteous indignation, blasting out his own Salem News
column in response. (CLT Update, Jul. 26, 2006, "State
Rep. Petersen steps in it again")

He used it to cover his backside, claiming the
Legislature's stalled Con-Con vote had a higher purpose, but he assured
readers and constituents that a vote would come right after the November election:

"I would say that the vote to adjourn reflects not
trickery but a cooperative effort by legislators to gain more time to
consider a matter of extraordinary and serious significance. It seems
very reasonable that on an issue of this magnitude, legislators should
deliberate on this matter without the glare of the media and the heat
of elections. We are scheduled to take up this issue again on Nov. 9,
2006."

On Jul. 26, the Lynn Daily Item reported:

Petersen said Tuesday. "My wish is that we make
this a very public legislative vote. We are the gatekeepers, which is
why the Founding Fathers brought us into the picture. We aren't just a
pass-through. Besides, I feel very capable of making that decision."

Once he was safely re-elected and the post-election
Con-Con was convened, Rep. Petersen was one of those 109 shameless pols
who defied their constituents, the constitution, and their oaths of
office. Once comfortably returned to his seat in the Legislature, he
and the other lawless legislators again gave the people -- the masochist voting
majority --the familiar Beacon Hill Middle Finger Salute.

This trail of deception, the public record of
treachery, will follow Rep. Peterson and others of his ilk forever.
This disreputable stain is now a permanent part of Massachusetts' long
and once-glorious history. Formerly called "The Cradle of Liberty," look
how far our state has fallen -- been dragged down by petty, arrogant
politicians.

That latest constitutional dodge was just as CLT had predicted and stood
by, despite boisterous denials to the contrary by its plotters and perpetrators.
It is precisely what will happen in the upcoming sham Con-Con on January
2 as well -- and everyone knows it now, or should.

Legislators' arrogance runs more rampant than ever
before -- and why shouldn't it? No matter how poorly they treat
their constituents, the masochist voting majority keeps putting the same
pols back in office to cause them even more pain, kick them again and
harder.

State
Rep. Rachel Kaprielian
(D-Watertown), in response to Governor Romney providing her
with a copy of the state constitution, told the State House News Service: "I
kept mine. I put it on my bookshelf for reference material ... It’s
another copy of a document I may want to reference at some point."
Wouldn't it be nice if one day she actually picked it up and read it -- but why bother
when in her blissful ignorance she can make it up as she goes along?

Hers is just one example of the smartass comments of
far too many legislators who see this constitutional crisis of their
creation as marvelously humorous, a lark to be joked about. "'Let them eat
cake,' hah, hah!" Of course the joke is on us, We the People. The pols keep
ramping up the abuse, and getting away with more and more of it come
election time.

The only questions that remain are, how much abuse
can they heap on us -- how long can they get away with their escalating
assaults? And what little will be left of constitutional
government in Massachusetts if the voters ever wake up and toss the
oligarch bums out?

Governor Mitt Romney said yesterday that he would ask the Supreme
Judicial Court to override the Legislature and let voters decide whether
to ban same-sex marriage, telling a boisterous crowd of several thousand
at a State House rally that lawmakers are violating the state
constitution by refusing to act on the proposal.

Conservative and religious groups gathered a record 170,000 signatures
on a petition to put the proposed ban on same-sex marriages on the 2008
ballot, but the measure also requires the support of at least 50
legislators in two consecutive sessions to qualify for a statewide
referendum. On Nov. 9, legislators voted 109 to 87 to go into recess
rather than vote on the gay marriage ban, all but dooming its chances of
appearing on the 2008 ballot.

"The issue before us is not whether same-sex couples should marry. The
issue before us today is whether 109 legislators will follow the
constitution," declared Romney, promising to send the 109 lawmakers a
copy of the constitution and their oath of office to underscore his
frustration. "Let us not see the state, which first established
constitutional democracy, become the first to abandon it."

A spokesman for Romney said he would file a lawsuit with an SJC justice
this week, urging the justice to direct Secretary of State William F.
Galvin to place the issue on the state ballot anyway on the grounds that
the Legislature is obstructing democracy.

State Police estimated the crowd at about 5,000 people, with gay
marriage opponents significantly outnumbering supporters.

"On an issue as important as marriage, I think the people deserve a
chance to vote," said Rich Sorcinelli, who traveled from West
Springfield to pressure the Legislature to allow a statewide referendum
on same-sex marriage. "Less than this has brought wars. This is what
brings civil disobedience."

But proponents of same-sex marriage at the rally said lawmakers deserved
praise, not a lawsuit, for blocking the gay marriage ban from reaching
the ballot.

"As soon as you go down the path of the majority voting on the rights of
the minority, you're going down a dangerous path," said Ken Repp of
Waltham who attended the rally with his husband of 2½ years, Christopher
Johnson.

A specialist on Massachusetts constitutional law said Romney's legal
appeal is unlikely to succeed, in part because it is premature.
Legislators still have one day to vote on the same-sex marriage ban on
Jan. 2, the last remaining day for current legislators, said Lawrence
Friedman, an assistant professor at the New England School of Law. He
also said Romney's legal argument is wrong.

"That's a lawsuit that is probably a waste of taxpayers' dollars," said
Friedman, who filed a legal brief in support of same-sex marriage when
it came before the SJC in 2003. He said he is not involved in the
current debate. "The constitution doesn't actually require the
Legislature to take a vote. It says that they have to discuss it and
debate it, and I don't think there is any good argument that there
hasn't been a lot of discussion and debate."

The rally was more about high political drama than the nuances of
constitutional law. Opponents and proponents of same-sex marriage stood
across Beacon Street from each other. One side chanted "Let the people
vote;" the other, "Let the people marry."

Romney and other speakers stood before an enormous American flag draped
across the State House doors, while nuns distributed anti gay marriage
brochures in the crowd below. On the other side, proponents of same-sex
marriage shouted "bigot" and "shame" as Romney and others spoke.

Lieutenant Paul Maloney, a State Police spokesman, said he knew of no
arrests at the rally despite the strong sentiments.

Romney, whose staff helped organize the rally, is considering a 2008
presidential bid, and some critics accused him of using the issue to
sharpen his conservative credentials nationally before he steps down as
governor.

But Romney's chief spokesman, Eric Fehrnstrom, said the personal attacks
on his boss show the weakness of the argument against letting voters
decide. "The governor has a constitutional role to play in making sure
that the Legislature votes on matters that are brought to them by the
people," said Fehrnstrom. "He is using the bully pulpit of his office to
get the Legislature to uphold its constitutional obligation."

Romney's planned appeal to the SJC underscores his limited options to
force the Legislature to act. It was the state's top court that in 2003
ruled to legalize marriages between same-sex partners in the first
place. The 4-to-3 decision triggered a powerful backlash among social
conservatives, who formed an umbrella group, VoteonMarriage.org, to
gather the required 60,000 signatures for a statewide referendum on
same-sex marriage. Although the group gathered more than twice the
signatures necessary, legislators have declined to vote directly on the
proposal, making it impossible for those who support the ban to show
they have the required support of 50 legislators.

As recently as Nov. 9, Romney acknowledged that his legal options are
limited.

Friedman said that, under Massachusetts' constitution, voters have no
right to vote directly on issues unless the Legislature decides to allow
it.

Yesterday, though, Romney said there is no question that the majority of
state legislators on Nov. 9 decided to "usurp the Constitution, to
abandon democracy, and substitute a form of what this nation's founders
called tyranny" for the will of the people. He said the constitution
"plainly states" that legislators must vote directly on petitions from
citizens.

Senate President Robert E. Travaglini and House Speaker Salvatore F.
DiMasi could not be reached for comment.

Roberto Miranda, chairman of VoteonMarriage.org, said that the
Legislature's refusal to act has given gay marriage opponents the moral
high ground in the debate. He said that gay people "portray themselves
as victims, but in this case they act as oppressors."

Standing in front of a big American flag like a corporate, coiffed Gen.
Patton, Gov. Mitt Romney declared yesterday he is rolling out his legal
big guns to force the gay marriage battle to a vote.

Incensed by the "obstructionist" Legislature, the Republican
presidential hopeful will this week petition a single justice of the
state Supreme Judicial Court to order the same-sex marriage amendment
onto a ballot - which lawmakers have refused to do.

"Let us not see this state, which first established constitutional
democracy, become the first to abandon it," said Romney, standing before
a backdrop of the imposing Stars and Stripes.

Earlier this month, the Legislature voted 109-87 to adjourn rather than
vote on a ballot petition signed by 170,000 residents demanding a vote
on marriage. That could change when lawmakers reconvene on Jan. 2, the
last day of the legislative session.

Pro-vote Bristol County Democrat Rep. Philip Travis called on House
Speaker Salvatore DiMasi and Senate President Robert Travaglini to
"release your grasp on my colleagues and let them do the people’s
bidding. I want this vote heard ’round the world."

Romney said, "Legislators so energized to protect the newly discovered
gay right to marry had no compunction about trammeling the
long-established constitutional right of the people to vote."

The SJC legalized same-sex marriage in the Bay State in 2003.

Supporters of VoteOnMarriage.org occupied the Statehouse steps for the
"Democracy Rally," while opponents crowded the opposite sidewalk.

"You see kids here being taught how to hate. You get tired of defending
your life," lamented Michael Keenan, who was on the opposite side of
Beacon Street with Eric Sigmond, his partner of 24 years and spouse for
two.

Former mayor Raymond Flynn, standing with Romney, said he opposes
discrimination, but the grandfather of 14 said children are best served
"growing up in a loving environment with a mother and father."

In an effort to bypass the state Legislature and force a vote on a
proposed constitutional ban on gay marriage in 2008, Gov. Mitt Romney is
expected to petition the state’s highest court today to allow the issue
to be put to voters without lawmakers’ backing.

The petition, which will be made to a single justice of the state
Supreme Judicial Court, will seek an order directing Secretary of State
William Galvin to put the proposed amendment defining marriage as
between a man and a woman before voters on the November 2008 ballot.

The suit will claim lawmakers obstructed democracy by refusing to vote
on the issue during the Constitutional Convention earlier this month,
voting instead to recess until Jan. 2, a move that effectively killed
the measure.

Gay marriage supporters lauded the 109 lawmakers who voted for the
recess, including House Speaker Salvatore DiMasi, but Romney blasted
them and on Monday sent each a copy of the state constitution along with
a letter accusing them of violating their oaths of office.

Governor Mitt Romney and a group of Massachusetts residents asked the
state's highest court yesterday to override the Legislature and let
voters decide whether to ban same-sex marriage, accusing legislative
leaders of violating the state constitution by refusing to act on the
proposal.

Romney, an outspoken opponent of gay marriage and a likely presidential
candidate, and 10 other plaintiffs said legislators subverted the
democratic process on Nov. 9 when they met in joint session as a
constitutional convention and took no action on the ban. The Legislature
voted, 109 to 87, to recess before taking a vote on whether to put the
proposed amendment on the 2008 ballot.

"This is no longer just about gay marriage," Romney's spokesman, Eric
Fehrnstrom, said of the suit filed with the Supreme Judicial Court.
"It's about the right of the people to participate in their own
government."

The suit said the Legislature's refusal to act on the measure marks the
fifth time in 24 years that lawmakers had violated the constitutional
provision that allows citizens to vote on amendments they initiated.
Proponents of the same-sex marriage ban collected a record 170,000
signatures in hopes of getting the amendment on the ballot. But to
qualify for a statewide referendum, the measure also requires the
support of at least 50 legislators in two consecutive sessions.

The plaintiffs want the court to order lawmakers to vote on the
amendment. If the Legislature does not act, the suit asks the justices
to direct Secretary of State William F. Galvin to put the measure on the
2008 ballot anyway. The suit would be considered first by a single
justice on the Supreme Judicial Court.

However, some specialists on Massachusetts constitutional law have said
the lawsuit was premature and therefore unlikely to succeed. Legislators
still have one day to vote on the same-sex marriage ban: on Jan. 2, the
last remaining day for current legislators.

Even if lawmakers failed to act that day, it would not violate the
constitution, said Renee M. Landers, who teaches constitutional law at
Suffolk Law School and predicted that the SJC would side with the
Legislature.

"The constitution requires them to consider the petitions that are
proposed by initiative, but they don't have to vote to put them on the
ballot," she said.

Arline Isaacson, cochairwoman of the Massachusetts Gay and Lesbian
Political Caucus, dismissed the suit as "just more of Mitt Romney's
positioning himself nationally as the preeminent antigay presidential
candidate. It helps him credential himself amongst conservatives in
Mississippi, Alabama, and throughout the Bible Belt, but its real-world
significance is ... practically nothing."

However, one of the other plaintiffs, Raymond L. Flynn, a former Boston
mayor, said in a statement that the news media and liberal Democrats
underestimate the widespread support that the marriage ban has
throughout the country. Flynn, a Democrat who also served as US
ambassador to the Vatican, predicted that the proposed marriage
amendment "will likely give Mitt Romney the Republican nomination for
president of the United States."

Senate President Robert E. Travaglini, who presided over the
Legislature's constitutional convention and is a defendant in the suit,
could not be reached for comment.

In addition to Romney and Flynn, the plaintiffs in the suit include
Roberto S. Miranda, chairman of VoteonMarriage.org, and C. Joseph Doyle,
executive director of the Catholic Action League of Massachusetts. The
Boston law firm of Hanify & King is representing the plaintiffs at no
charge, Fehrnstrom said.

If Romney had filed the lawsuit himself as governor, as some political
observers had expected, he would have had to ask state Attorney General
Thomas F. Reilly to represent him. Reilly has declined some requests by
Romney to represent the administration in legal challenges to gay
marriage, including an entreaty in September to appeal a Superior Court
ruling that allowed same-sex couples from Rhode Island to wed in
Massachusetts.

Giving process its due
End can not justify means on gay marriage
By Sam Allis, Globe Columnist

Call me a process liberal.

This is the dismissive term used by Arline Isaacson, the fiery co-chairwoman of
the Massachusetts Gay and Lesbian Political Caucus, to describe those whose
support of a lefty cause is tempered by their commitment to play by the rules.

It is, in this case, aimed at people like me who support gay marriage but oppose
the legislative dodge, all but killing a constitutional ballot initiative
barring gay marriage, exercised earlier this month by the House and Senate,
sitting together as a Constitutional Convention.

"It's not a dodge at all," Isaacson maintains about the Nov. 9 vote to recess
rather than vote on the amendment. "What we stand to lose is so significant, and
it's so unfair for our supporters to expect that we should just lie down and
say, 'It's OK, the process is more important than our rights.'"

Process liberals get tagged in torrid single-issue causes whose advocates like
Isaacson conclude that the end justifies the means. That the goal is so
important, they can ignore due process, in this case the state constitution.

"It's not a matter of following the constitution," says John Reinstein, legal
director of the American Civil Liberties Union of Massachusetts. "It's following
the constitution down the drain."

Great line, but, of course, once you start choosing which parts of the
constitution to obey, you're practicing cafeteria constitutionalism, which
invites cynicism.

Say for the sake of argument that the ballot initiative would embed in the
constitution the right of gays to marry and that the Legislature dodged a vote
on it. Isaacson and Reinstein would, in righteous dudgeon, demand that
legislators honor their oath of office to obey the state constitution.

They would demand that a Constitutional Convention follow Article 48 of the
document, whose clear intent calls for a vote on an initiative before it. (If
there are 50 votes in favor, the proposal goes on the ballot in the next
statewide election.) The irony is that Article 48 was added to the constitution
in 1918 to provide citizens a means to thwart an obstructionist legislature.

There was nothing pretty about the 109-to-87 vote to skate on the gay marriage
initiative, which drew a record 170,000 signatures. No profiles in courage
either. The leaders of both houses took a powder instead of defending the craven
recess vote.

Nothing around this issue is clean. It is, for starters, deeply unsettling to
line up with Governor Mitt Romney, who with 10 plaintiffs petitioned the Supreme
Judicial Court last Friday to order Secretary of State William F. Galvin to put
the initiative on the 2008 ballot. Romney, whose White House ambition dictates
his every move, has a case here, however cynically motivated.

It's not just Romney and gay marriage. Another constitutional amendment that got
sidetracked calls for affordable, comprehensive health care for everyone in the
state. (It was banished to a study group that has never met.) Earlier this
month, former US attorney Donald K. Stern filed a complaint to the SJC similar
to the Romney suit on behalf of a group behind this initiative.

Supporters argue that while a universal health care law already exists, it can
be repealed, as occurred to such coverage under Michael S. Dukakis before that
statute even went into effect. They want the initiative on the 2008 ballot if
the Legislature fails to act before it adjourns Jan. 2 -- the day you can bet
your 401(k) the gay marriage amendment will die.

Forget Springsteen, these two SJC hearings will be the marquee events in these
parts.

If these constitutional collisions seem like no-brainers, they're not. It's easy
to get hoisted by one's own petard here. Consider, for example, a ballot
initiative with 50 votes at a Constitutional Convention calling for the right of
every citizen in the state to own rocket-propelled grenade launchers.

Then there is the whole thorny issue of direct democracy -- the euphemism for
law by popular ballot. Should we really make statutes by getting signatures from
people dashing into True Value for duct tape on issues of basic rights or
complicated measures like universal health care? Yet to deny the procedure
because such measures are deemed too important to leave to the masses smacks of
bald elitism.

A process liberal knows when the process is broken, and it is now. The bar in
the amendment procedure is set dangerously low.

It should take a lot more than 50 votes-- a mere 25 percent of a constitutional
convention-- to propel an initiative onto the ballot.

Two-thirds of each house of Congress, in contrast, must ratify a constitutional
amendment before it goes to the states. We should head in that direction pronto.

In the meantime, there is the minor detail of the state constitution.

I can't predict the outcomes of the two SJC petitions -- intellectual mud
wrestling among smart lawyers will shape them -- but I do know that the current
situation smells bad.

Mitt in your mailbox:
How legislators respond to constitutional mailing
By Jim O’Sullivan

If you were one of the 109 lawmakers who voted to recess the
Constitutional Convention without voting on a citizen petition against
gay marriage on Nov. 9, you had mail last week – gubernatorial mail,
bound and annotated.

Gov. Mitt Romney’s Thanksgiving week package to the reps and senators
who voted not to take up the ballot initiative banning gay marriage also
included a copy of the state oath of office, and a letter chiding
legislators, "By not voting, you are frustrating the democratic process
and subverting the plain meaning of the Constitution. The issue before
us isn't whether gay couples can marry - it's whether the Constitution
will be honored and whether the will of the people will be honored."

Recipients were nonplussed.

Rep. Martin Walsh (D-Dorchester) said he responded in kind, sending a
handy map of the Commonwealth for Romney to peruse. Walsh said he got
his copy of the joint works of John and Sam Adams last weekend.

He planned to send the state map, Walsh said, to Romney’s Belmont home,
"so that when he’s on his presidential run, if he comes back to
Massachusetts, he’ll be able to find his way around."

Sen. Edward Augustus (D-Worcester) said he intends to mail the governor
a copy of "Profiles in Courage," the John F. Kennedy-authored
description of eight US senators defying public opinion in favor of
conscience.

"Because," Augustus said, "it takes no courage whatsoever to get in
front of a big audience and demagogue an issue that’s taking away the
rights of a minority group ... Maybe he’ll get a little inspiration from
the book."

House Minority Leader Rep. Bradley Jones (R-North Reading) said the
direction of the Jan. 2 return of the Constitutional Convention hangs on
Senate President Robert Travaglini, the presiding officer.

Unless Travaglini calls for a vote, Jones said, "There’s nothing that’s
going to preclude people from talking until time runs out. I mean, you
can see that happening. We’ll have Jarrett Barrios get up and talk for a
half-hour."

Travaglini, in a recent interview on WGBH’s "Greater Boston," said he
wants to see an up-or-down vote on the petition but needs 101 people to
agree to move ahead with that vote. Looking ahead to Jan. 2, Travaglini
said, in reference to gay marriage supporters, "They can engage in a
number of parliamentary maneuvers and they will. This is what people
don’t understand."

"I don’t think it hurts," Jones said. "Look, obviously that specific
aspect of the point the governor’s making may be more theater than
anything else, but it does serve as an exclamation point on a very valid
point, or a very valid concern."

But the majority of lawmakers interviewed conveyed a mixture of
amusement and bitterness.

"I was very pleased to see that it was postmarked in Massachusetts,"
Rep. Jay Kaufman (D-Lexington) smiled, knocking Romney’s frequent
out-of-state political trips.

Kaufman called Romney’s move "a clever stunt, but horrible statecraft."
He said he’d contact the libraries in his district and see if any needed
an extra copy of the constitution.

Rep. Frank Smizik’s wife opened his copy, and the Brookline Democrat
said Romney’s presidential prospects may influence what he chooses to do
with it: "If he wins, I’ll have him sign it. I’ll ask him to sign it."

"In the four years he’s been here, he’s never said boo to me, so it’s a
little surprising for him to send me a Constitution," Smizik said.

In an emailed response, Romney spokesman Eric Fehrnstrom wrote, "The
Constitution is pretty clear. It says legislators 'shall' vote on
proposed amendments brought forward by the people. Legislators can vote
against the proposed amendment if they like, but they should not avoid
their responsibility to take a vote."

Rep. Rachel Kaprielian (D-Watertown) also shrugged off any added value
of a state document sent to her by a likely presidential contender: "I
kept mine. I put it on my bookshelf for reference material ... It’s
another copy of a document I may want to reference at some point."

Asked about the message Romney likely intended, that legislators are
sworn to vote on qualifying petitions, Kaprielian replied, "I’m sure
there’s more than one interpretation of our constitutional duty."

Smizik said Romney is trying to make the issue "black and white" when
it’s not.

Rep. Matthew Patrick (D-Falmouth), who fired off to media outlets a tart
response to Romney’s package, laughed at the suggestion that it might
appreciate in value if Romney moves from Beacon Street to Pennsylvania
Avenue.

"It's a good day for gay-marriage proponents and a bad day for
gay-marriage opponents," state Rep. Michael Costello, D-Newburyport,
chortled last week after the Constitutional Convention went into recess
without voting on the gay-marriage issue.

Actually, it was a bad day for democracy. But while much of the
attention has focused on those 109 senators and representatives who
would deny voters having their say, those who stood tall in favor of
obeying the law and taking a vote should be recognized.

Some intended to vote against the amendment that would define marriage
as the union of one man and one woman, and were opposed to seeing it
placed on the ballot in 2008. But they were willing to take an
up-or-down vote even knowing those on the other side might have the 50
votes needed to move the question forward. (It would need to gain the
support once again of at least 25 percent of the 200 lawmakers in the
2007-2008 session in order to appear on the ballot in November 2008.)

Rep. Harriett Stanley, D-West Newbury, is one who feels it's time for
the commonwealth to move on and opposes a statewide vote on the
amendment. However, she noted, "It's our job as the Legislature to make
tough decisions ... (this is) avoiding it."

But Costello and those of his ilk (you may recall the two-term
lawyer/legislator as one who tried to water down Melanie's Law last
year), feel the ends justify the means, however improper. So rather than
risk an affirmative vote, they opted to recess until the last day of the
legislative session on Jan. 2, effectively killing the petition and
ensuring that it cannot go before voters until 2010 at the earliest.

Costello's actions even won him a mention in the Wall Street Journal
which cited his "arrogant dismissal" of voter preference as a reason "so
many Americans despise politicians."

Most of those who voted for this latest recess had done so in July, at
which time they promised a vote - no surprise - right after the
election. But three North of Boston legislators - John Keenan, D-Salem;
Mary Grant, D-Beverly; and Ted Speliotis, D-Danvers - who'd opposed
recessing the Constitutional Convention in July, were persuaded during
the intervening four months that it would be better to stifle a vote
this time.

Tucker is among the most vociferous opponents of the amendment, and does
not believe the Constitution required the Legislature to take a vote.
But she's right when she says the process would have been better served
by their doing so.

Lawmakers faced a difficult choice
at Constitutional Convention
By State Rep. Doug Petersen

It is unfortunate that Barbara Anderson must of late resort to invective
and falsehoods to make a point ("If
only we could send Massachusetts legislators to some deserted island,"
Viewpoint, Nov. 15). I know her to be a better and more thoughtful
essayist than that. The decision by the Legislature on Nov. 9 to recess
the Constitutional Convention was not motivated by arrogance and
contempt of our constituents as Barbara relentlessly asserts. It was a
painful and disappointing vote for the vast majority of legislators.

Many of us were fully prepared and hopeful of a vote on the merits of
the anti-gay marriage ballot proposal. But the overwhelming majority of
the Legislature was also acutely aware of the prejudice and contempt we
would have shown our gay and lesbian constituents by sending this
unprecedented constitutional amendment for a popular vote. It was truly
an agonizing set of conundrums that were before us.

The specter of having the neighbors of gay and lesbian citizens decide
the fate of their neighbors' legal and civil rights, was unacceptable.
In the end, that vision was the most compelling. It is a vision that
embraces the spirit of the Massachusetts Constitution which has
consistently expanded civil rights - not diminished them to any
particular group.

Barbara argues that the law is clear that a constitutional up-or-down
vote must be taken on petition initiatives. However, since 1919 when the
initiative petition provision was added to the Constitution, the Supreme
Judicial Court has ruled several times that the Legislature cannot be
compelled to hold a vote on an initiative petition for a constitutional
amendment.

In 1956, for example, the justices stated "....there is no means of
compelling a joint session to take any action..." (Opinion of the
Justices, 334 Mass 745, 757 [1956] ).

That aside, I believe the spirit of the language is clear and an
up-or-down vote should be taken as the norm. While it is regrettable
that we were unable to defeat this proposal on its merits, it does not,
as Barbara Anderson claims, set a precedent for the demise of the
initiative petition process. If this were the case, the precedent would
have been set in 1982 when the Legislature adjourned without taking a
vote on the initiative petition to alter state budgeting procedures.

In fact, the Legislature has adjourned on five of nine occasions without
taking a vote on an initiative petition. One of the more recent
occasions was in 1990 when the Legislature recessed numerous times, only
to finally adjourn without taking a vote on a measure to guarantee the
right of reproductive choice in our state Constitution.

My Nov. 9 vote to recess reflects the strains of essentially two
diametrically opposed constitutional obligations: On the one hand, my
obligation as a legislator to vote up or down on an initiative petition
that proposes an amendment to the Constitution; and on the other, my
sworn duty as legislator to uphold the Constitution by protecting the
existing civil rights of every citizen of the Commonwealth.

In the end, I chose what I believe was the more justifiable of the two
constitutional obligations presented to me -- namely protecting the
minority from any attempt to infringe upon their constitutional civil
rights.

To Barbara, I am sorry that you are so angry and disappointed with the
Legislature and with your fellow citizens (whom you deem as "clueless by
choice" for re-electing legislators who voted this way). These are
difficult decisions that legislators must make. Some people will agree
with my votes and others not. Clearly Barbara does not, although it
should be noted that my office has been flooded with thank-you notes
from concerned citizens who do.

It was not so long ago that you, Barbara, stood in the Statehouse and
presented me with a Legislative Hero Award for resisting attempts by the
Legislature to kill the Clean Election Law. I hope in future there will
again be issues on which we can agree; and it is my hope that in spite
of our disagreements over the years, we can return to that state in our
relationship where civility prevails.

Douglas Petersen, D-Marblehead, was recently re-elected to his ninth
term as state representative from the 8th Essex District which includes
the towns of Marblehead and Swampscott and parts of Lynn.

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